Western Cape Judge President John Hlophe will not return to work until the Judicial Service Commission (JSC) finalises its hearings, Justice Ministry spokesperson Tlali Tlali said on Friday.
Hlophe wrote to Minister of Justice and Constitutional Development Jeff Radebe earlier this month, informing him he would return to the bench after the current recess ends next Monday.
”Judge Hlophe wrote to the minister a few weeks ago where he expressed a desire on his part to return to work at the beginning of the next court term,” Tlali said.
”The matter was considered by the minister. It was by mutual agreement that the minister and the judge president decided to postpone Hlophe’s return to office pending the finalisation of the matter before the JSC.”
The Western Cape judge president is on leave, pending the completion of the JSC investigation into whether he improperly influenced Constitutional Court judges in cases involving President Jacob Zuma.
The JSC appointed a three-man subcommittee on Wednesday to investigate whether there is enough evidence to proceed with a full hearing into the dispute between Hlophe and the judges of the Constitutional Court.
The subcommittee will be made up of JSC spokesperson Marumo Moerane, Judge Ishmael Semenya and Judge President Bernard Ngoepe, who will chair the group.
It will hear evidence from Hlophe and Constitutional Court judges Bess Nkabinde and Chris Jafta who accused him in May last year of trying to improperly influence them regarding pending judgements relating to the now abandoned corruption case against Zuma.
The hearings will be held in private. However, moves are afoot to bring urgent proceedings for the media to be granted access to the preliminary hearing.
”It will assess the evidence” and make a recommendation on whether to pursue the matter. If it went to a full hearing, Hlophe risked impeachment, a Justice Ministry source said.
Wednesday’s six-hour meeting of the JSC took place after it cancelled its planned closed preliminary hearing into the Hlophe matter.
That decision was taken at the first JSC meeting on the matter to include Zuma’s four new appointments to the JSC.
The four include Advocate Dumisa Ntsebeza, who at one point represented Hlophe but was fired by the judge president, and sits on the JSC’s complaints committee, which is wrestling with the case.
Hlophe would have been questioned in the process. However, as is the case now, there was uncertainty about whether his testimony would ever have been made public.
Moerane had said the outcome of the preliminary investigation would be disclosed but not necessarily the full record of proceedings.
Hlophe has aspirations to become a judge on the Constitutional Court, and has said he hopes the matter is resolved before nominations for vacancies on that bench close in spring.
He has been on forced leave for months.
The South African National Editors’ Forum (Sanef) said in a statement it was ”astounded” by the decision of the JSC to hold the three-man subcommittee preliminary hearing behind closed doors.
”Sanef’s view is that it is extremely important that the principle of ‘open justice’ be upheld and that it is imperative that the proceedings before the JSC subcommittee should be open to the public because the issues involve members of the highest court in the country and a judge president of a High Court,” the statement said.
Sanef said the decision flaunts a High Court decision in April by Judge Nigel Willis overturning an earlier attempt by the JSC to close the hearings to the public and the media ”to protect the dignity of the offices of the Chief Justice, Deputy Chief Justice and the Cape Judge President”.
Willis, according to Sanef, ruled that a decision by the JSC to bar the media and the public from the hearings had not satisfied the commission’s own rules, in terms of which it must show good cause to exclude the media.
He dismissed the commission’s argument that opening the hearings could harm the dignity of the offices of the justices involved.
He said the ”fundamental principle for proceedings of this nature is that the public should have a right to be there. By allowing the public access to the hearing in open court, the entire judiciary will be enhanced rather than diminished”.
The issues surrounding Hlophe were of intense public interest and he suggested that conducting the hearings in secret would likely do more damage to confidence in the judiciary than an open process.
”Sanef calls for the JSC to abide by the High Court’s ruling and open the hearing to the public.” — Sapa